IMPORTANT DECISION IN THE APPEAL COURT.

New Zealand Herald, Volume XXIII, Issue 7656, 5 June 1886, Page 6

IMPORTANT DECISION IN THE APPEAL COURT.

[BY TELEGRAPH.—PRESS ASSOCIATION.] Wellington, Friday. In the Court of . Appeal yesterday, Mr. Jellicoe moved ii the case of G. W. Ell, which was before the Court a few days ago, and in which the Court remitted * petition for adjudication to the Christchurch Bankruptcy Court for rehearing, foe leave to appeal from the decision to Her Majesty in Council. Mr. Austin, of Christchurch, appeared to oppose. Mr. Jellicoe, in opening the case, said that the Order-in-Council of 1871 provided liberty to appeal in all cases involving civil rights of the value of £500 and upwards, and that the question of adjudication involved respondents' status, which was beyond pecuniary value—at least the Court could not value it. Mr. Justice Williams: But the Bankruptcy Act here declares the decision of the Court of Appeal shall be final. Mr. Jellicoe: That is ultra vires. The powers of the colonial Parliament cannot limit or negative the prerogative of the Crown, and entertain appeals. The Chief Justice : lhat we concede. We bring ourselves within the Order-in-Council, and are entitled to grant leave if a proper case is made out. Mr. Justice Williams pointed out that the Court of Appeal under the Order-in-Council could only give leave to appeal where their judgment reversed ; the judgment of the Supreme Court, and the superior Court of Bankruptcy was a separate Act. Mr. Jellicoe said there might be a distinction, but no difference. When the Order-in-Council was issued, the Supreme Court had exclusive jurisdiction in bankruptcy. Legislation had now constituted another tribunal, called the superior Court of Bankruptcy, but the Judges were the Judges of the Supreme Court. The Bankruptcy Act provided that • very Judge should have all the powers, jurisdiction, and privileges possessed by Supreme Court Judges. A bankruptcy Judge had to exercise a Supreme Court jurisdiction, and the appeal was from his judgment. Mr. Austin called attention to a Canadian case, and Mr. Jellicoe continued his argument, and cited the decisions of the Privy Council on appeals from the Straits Settlements and Madras. One case was that of a divorce in which it was decided that there was a right of appeal, not barred by omission in the Order-in-Council. The Chief Justice said the Court would entertain the motion if Mr. Jellicoe could show that the decision appealed against was that of a Supreme Court, and not a separate Court. Justice Richmond expressed himself strongly respecting the present constitution of the Bankruptcy Court, and said that both the Bench and the Bar could not understand the reason of the distinction, and that was the difficulty Mr. Jellicoe found himself in. Mr. Jellicoe said that if the Court were prepared to decide against him on the question of jurisdiction it waa useless to press the other points. He was bound to apply to the Appellant Court in the first instance, and to take its opinion in the case. The Privy Council held, when petitioned for leave to appeal, that leave onght to hare been obtained in the colony, and then he would be out of time.

Mr. Justice Williams assented, and the Court refused the application.

Mr. Austin was awarded five guineas costs.